A snag as justices mull Guantanamo detainees

NEWS ANALYSIS White House seeks to put second case before high court

Linda Greenhouse, New York Times

Published
4:00 am PST, Wednesday, February 6, 2008

Two months after the Supreme Court heard arguments in a case on the rights of the Guantanamo detainees, an unanticipated development has suddenly scrambled the outlook for a straightforward resolution. Cases that have been proceeding on completely separate judicial tracks may be about to converge.

The Bush administration said Monday it would file an emergency appeal at the court, seeking review of a lower-court ruling that the government must supply more information to defend its designation of a detainee as an enemy combatant - entirely too much information, in the administration's view.

The appeal, to be filed by Feb. 14, a day before the justices' next closed-door conference, will ask the court to add the new case to an argument calendar that had appeared to be complete for the remainder of the term when the justices began a recess two weeks ago.

The two cases appear quite distinct. Boumediene vs. Bush, the case the Supreme Court heard Dec. 5, challenges Congress' withdrawal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees contesting their open-ended confinement. Whether the Military Commissions Act of 2006 violated the Constitution's injunction against the "suspension" of habeas corpus is a question steeped in constitutional history and theory.

By contrast, Bismullah vs. Gates, the subject of the administration's new appeal, is as deep in the weeds of congressional intent as the Boumediene case is high up in the realm of constitutional principle. It concerns the system that Congress established in the Detainee Treatment Act of 2005 for determining whether a Guantanamo Bay prisoner was being properly held as an enemy combatant. The dispute is over how extensive a record the government must supply when an enemy combatant prisoner appeals to the U.S. Court of Appeals for the District of Columbia Circuit, the forum provided by the 2005 law.

Below the surface, however, the two cases are entwined. They overlap on the question of judicial review of the enemy-combatant designation. Under the Supreme Court's precedents, habeas corpus - the historic method of challenging detention by the executive branch - is not always strictly required as long as the Legislature has provided an adequate substitute.

So the question is whether the review that detainees may seek in the D.C. Circuit is extensive enough to qualify. In the Boumediene case, the detainees' lawyers have argued vigorously that it is not; the administration has asserted just as forcefully that it is.

Which side is right depends on what the review consists of. The D.C. Circuit appeared well on the way to defining the scope of its review in July, when a three-judge panel of the 10-member appeals court rejected the administration's argument and ruled that the government had to turn over "relevant information in its possession that is reasonably available," including evidence withheld from the military's "combatant status review tribunal" that made the original enemy-combatant designation.

Then things got complicated. The administration asked the three judges to reconsider the case. In October, the panel refused. The administration next sought rehearing from the full court. On Friday, the judges split 5-5, which had the effect of leaving the panel's opinion as the law.

This was no ordinary split. Judge A. Raymond Randolph, writing for four of those who voted to reconsider, declared that the panel's opinion endangers national security. Chief Judge Ginsburg, Randolph's usual ideological ally, replied in defense of the opinion that "the court obviously must see all the government information" in order to fulfill the duty of appellate review that Congress gave it.

On Monday, the Justice Department asked the appeals court for a stay of the ruling to give the Supreme Court a chance to act, warning that "immediate and drastic consequences" would otherwise result.

The pressure on the justices to take up the Bismullah case may consequently be irresistible. The intriguing question is which side in the Boumediene case stands to benefit more. The answer is far from clear, due to a paradox that lies at the intersection of the two cases.

If the government's argument for a severely limited review in the D.C. Circuit wins the day, the detainees' lawyers would appear to be strengthened in their position that no adequate substitute for habeas corpus has been provided. On the other hand, a requirement, which the detainees seek, for a more robust appellate review could strengthen the government's hand in arguing that there is no need for habeas corpus after all.

Each side, in other words, could be in the position of arguing against its own interest if the court grants review in the Bismullah case.